Casinos open, churches capped, and the pandemic rulings that restored worship

Folks, let me describe a regulatory regime to you, and you tell me what the people who wrote it were thinking. In one building, a thousand people may feed quarters into slot machines, as long as they stay at half capacity. Across the street, in a building where people sing hymns, no more than fifty may enter, and that is true whether the building holds fifty or fifteen hundred.

Now ask yourself what the drafter was thinking. Was it "the hymn is more dangerous than the jackpot"? Was it "a sermon spreads something that a roulette wheel does not"? Or was it the quiet, unspoken assumption that nobody important was going to complain about the church? Because that last one is what the Supreme Court eventually said out loud.

This is the story of how the highest court in the land went from shrugging at those rules to striking them down, in about a year, and what rule it left behind. I am going to make no medical claims about anything. Nobody on this page is a doctor. This is a story about the Constitution and about equal treatment, and I intend to keep it that way.

The question

The question is narrow, and it is not about whether governments may respond to an emergency. They may. A state has the police power, and in an emergency that power is at its widest. The question is whether a state that opens casinos, retail stores and offices may cap places of worship at a much lower number, and whether the First Amendment says anything about it.

Let me state the terms.

• Neutral and generally applicable. A law that targets no faith and applies to everyone alike, under Employment Division v. Smith (1990), draws only ordinary review. See Employment Division v. Smith and the Scalia rule that still splits conservatives.
• Comparable secular activity. Conduct that poses similar risks to the government's stated interest. The fight in these cases was over what is comparable.
• Strict scrutiny. The law must serve a compelling interest and be narrowly tailored. Almost nothing survives it.
• Deference. The courtesy courts give to political officials in an emergency, a doctrine with roots in Jacobson v. Massachusetts (1905), a smallpox vaccination case.

Round one: South Bay (May 2020)

In the spring of 2020, California's governor issued orders limiting gatherings. The state's plan treated places of worship under its own rules: attendance was capped at a percentage of building capacity, with an absolute ceiling, while other settings were treated according to their sector. South Bay United Pentecostal Church in the San Diego area asked a federal court to block the limits. The lower courts refused. The church went to the Supreme Court.

On May 29, 2020, in South Bay United Pentecostal Church v. Newsom, the Court denied the request by a vote of five to four. There was no majority opinion. Chief Justice Roberts wrote a short concurrence in the denial, and the key passage is worth quoting because it states the deference view as well as anyone has:

Our Constitution principally entrusts "[t]he safety and the health of the people" to the politically accountable officials of the States "to guard and protect."

He added that where those officials undertake to act in areas fraught with medical and scientific uncertainty, their latitude must be especially broad, and that unelected federal judges lack the background, competence and expertise to assess public health. He also said that the restrictions on worship appeared consistent with the Free Exercise Clause because similar or more severe restrictions applied to comparable secular gatherings, such as lectures, concerts and movie showings, while the less restrictive treatment applied to other activities, such as grocery stores and banks, where people do not congregate for extended periods.

Justice Kavanaugh, joined by Justices Thomas and Gorsuch, dissented. He argued that California had given a better deal to a long list of secular businesses, including some that entailed prolonged close contact, and that once a state exempts comparable secular activity it must give the same to religion. A state, he said, may not impose a worse rule on religious services unless it has a good reason. That is the rule that would later prevail.

I give the Chief Justice's view its due. An emergency is real and judges are not epidemiologists. That is a fair argument and an honest one. But note what the argument asks. It asks the judge to accept whatever line the official draws. If the official draws it between the casino and the church, the judge is told to defer. That is the part that does not survive contact with the text.

Round two: Calvary Chapel and the Gorsuch line (July 2020)

Two months later, in Calvary Chapel Dayton Valley v. Sisolak, the facts were almost too good. Nevada capped houses of worship at fifty people. At the same time, the state allowed casinos, restaurants, bars and gyms to operate at fifty percent of their capacity. A church with a large sanctuary could admit fifty people. A casino with a large floor could admit half its fire-code limit.

On July 24, 2020, the Court denied relief by a vote of five to four, again with no majority opinion. Justice Alito, joined by Justices Thomas and Kavanaugh, dissented. He wrote that the Nevada policy discriminated against religious services by treating them worse than casinos, and he said a state may not do that merely because the discrimination appears reasonable.

Justice Gorsuch wrote a separate dissent that produced the line everyone remembers:

But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.

I would like to pause on that, because it is the kind of sentence that makes a law-review article unnecessary. The Constitution does not require a state to open a church at full capacity during an emergency. It does require a state that is opening a casino at half capacity to offer the church something similar. A government that says "we've weighed the risks and the casino is worth more to us than the congregation" has made a value judgment about religion, and the First Amendment forbids it from making that judgment.

I could make a joke here about the state's theory of risk, namely that a person is safer at the craps table than in the pew. But Justice Gorsuch's line is the joke, and it is funnier than mine.

Round three: the Brooklyn rulings (November 2020)

Between July and November, something happened at the Court that has nothing to do with the law and everything to do with the votes. Justice Ruth Bader Ginsburg died on September 18, 2020. Justice Amy Coney Barrett was confirmed on October 26, 2020, and took her seat. The Court's majority shifted.

In the fall of 2020, New York's governor had announced a "cluster initiative" that divided parts of the state into colored zones. In a red zone, houses of worship were limited to ten people. In an orange zone, they were limited to twenty-five. Meanwhile, "essential" businesses, which the state defined to include grocery stores, pharmacies, and, in some zones, businesses such as acupuncture offices, camp-grounds and garages, could admit as many people as they wished. The Roman Catholic Diocese of Brooklyn and Agudath Israel of America, an Orthodox Jewish organization, brought consolidated challenges.

On November 25, 2020, the evening before Thanksgiving, the Court issued its decision in Roman Catholic Diocese of Brooklyn v. Cuomo. In an unsigned per curiam opinion, the Court granted an injunction against the limits, five to four. The reasoning:

1. The regulations were not neutral, because they singled out houses of worship for much harsher treatment than secular businesses deemed essential.
2. They therefore had to meet strict scrutiny, and that meant the state had to show a compelling interest and narrow tailoring.
3. Stemming the spread of the disease was a compelling interest, but the restrictions were not narrowly tailored, because less restrictive rules were available, such as limits tied to the size of the building. A large church could hold more people than a small one without a fixed number that made no distinction between a cathedral and a chapel.
4. The applicants had shown irreparable harm, because the loss of First Amendment freedoms, even for minimal periods, is irreparable.

Justice Gorsuch wrote a concurrence in which he said, in effect, that the Court's earlier hesitation had been a mistake, and that the pandemic did not suspend the Constitution. Justice Kavanaugh also concurred. Chief Justice Roberts dissented in a separate opinion. Justices Breyer, Sotomayor and Kagan dissented, with Sotomayor and Breyer saying the Court was second-guessing public health officials.

Notice who joined the majority. Justice Barrett was the fifth vote. The change in the Court's composition was the difference between South Bay and Brooklyn. That is not a scandal; it is how the system works. But it is a reminder that rights depend on who sits on the bench, which is a good reason to take the confirmation process seriously.

Round four: Tandon v. Newsom (April 2021)

The rule was finished by Tandon v. Newsom, decided April 9, 2021. California limited private gatherings in homes to three households at a time. That limit applied to Bible study and prayer meetings in a living room. Meanwhile, hair salons, retail stores, personal-care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants were allowed to bring together more than three households at a time. The plaintiffs wanted to hold small religious gatherings at home.

The Court, five to four in another per curiam opinion, granted relief. It then stated the rule in a way that ended the argument about what "comparable" means:

1. Government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.
2. Whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue. That means comparing the risks, not comparing the labels. If a hair salon and a Bible study pose the same risk, the government cannot permit one and forbid the other.
3. The government has the burden to show that the religious exercise poses a greater risk than the secular activity it allows.
4. Finally, the Court said that even when the government has relaxed its rules, the case is not moot if the government remains free to reinstate the limits.

Justice Kagan, joined by Justices Breyer and Sotomayor, dissented. Her argument, which I want to state fairly, was that the Court had misjudged what is comparable. In her view, a worship service or a Bible study involves people sitting together in close quarters for an extended time, and that is different from a trip to a store or a salon. The state, she wrote, is entitled to assess risk from a public-health perspective, and the Court was substituting its own view. That is the states' best argument, and I want to state it without a smile: officials who face a real emergency have to draw lines, and a line that treats a long gathering differently from a short transaction is not irrational on its face.

The answer, from the majority, is that the rule they adopted does not forbid drawing lines. It requires the government to draw them evenly. If the state says a movie theater or a restaurant, where people sit for hours, is allowed to operate, it has already accepted the risk of long gatherings for secular purposes. The reason for the line has to be something other than the fact that the gathering is religious.

The rule that came out

Here is the principle in a sentence: the government may not treat religious activity worse than comparable secular activity. The three-word version is "no worse treatment." That is not a special privilege. It does not say that churches get to ignore emergency rules. It says they get the same rules as the others.

I will give a numbered argument for why that is the right principle.

1. The text says so. "Congress shall make no law... prohibiting the free exercise thereof." A cap on worship that is tighter than the cap on the casino prohibits exercise more than it prohibits anything else.
2. The principle is a floor, not a ceiling. The rule does not stop a state from limiting gatherings. It requires that limits be even. If a government wants to cap everything, the Constitution lets it do so, provided that it can show the cap is needed.
3. It follows the Lukumi rule. The Court held in 1993 that a law that burdens religion while exempting comparable secular conduct is not generally applicable. These cases applied that rule in an emergency. The earlier case is covered in A Santeria church, a Florida city and the unanimous ruling for minority faiths.
4. Worship is, in the Founders' words, a duty and not a hobby. Madison's Memorial and Remonstrance described the duty to the Creator as precedent, both in order of time and in degree of obligation, to the claims of civil society. A government that treats the sacrament as less essential than the slot machine has gotten the priorities of the Constitution backward.
5. Emergencies are when rights are most at risk. The great danger of a crisis is that officials expand their authority, and they find it comfortable. A rule that rights must be respected even in an emergency, with the burden on the government, is the only rule that keeps the emergency from becoming the norm.

How the coverage played it

One word on the coverage. When these rulings came down, much of the press framed them as the Court siding with churches against public health. That frame is a choice, and it skips the actual question. Nobody at the Court said the churches should be exempt from public-health rules. The only question was whether the churches would be treated the way the casino was. The coverage might have asked why a state found the casino essential and the congregation optional. It mostly did not. That is worth noting, not because reporters are villains, but because the framing shaped the public's sense of what the fight was about. If you want a place to watch how stories are framed, the media watch page collects examples.

I would also note the mood. This is the point at which conservatives tend to get angry, and I'd rather we stay cheerful. We won. The Court restored the rule, and the principle is now settled across the cases. A movement that wins an argument should enjoy it.

What stays open

The Court did not say how much latitude a government has in a real emergency when the comparison is closer. It did not say that no limit on worship could ever be justified. If a state adopts a uniform rule that treats worship exactly like every comparable secular activity, and shows a real basis for it, the question changes. The cases leave the courts to decide, one at a time, what is comparable, and that is where the future fights will be. Those cases will be decided on risk and evidence, and the burden will be on the state.

Related questions about church and state remain, from the narrow ones about A town board, a guest chaplain and why opening prayers survived the Court to the broader ones about the Founders' language in Sixteen words on religion in the First Amendment, read phrase by phrase.

The case in brief

1. In South Bay (May 29, 2020) and Calvary Chapel (July 24, 2020) the Court, five to four, declined to block limits on worship, with Chief Justice Roberts urging deference in a public-health emergency and Justice Gorsuch writing that the Constitution does not permit favoring Caesars Palace over Calvary Chapel.
2. In Roman Catholic Diocese of Brooklyn v. Cuomo (November 25, 2020) the Court, with Justice Barrett now seated, enjoined New York's ten- and twenty-five-person caps because they treated houses of worship worse than essential businesses.
3. In Tandon v. Newsom (April 9, 2021) the Court held that a regulation is not neutral and generally applicable whenever it treats any comparable secular activity more favorably than religious exercise, and that comparability turns on risk.
4. The states' strongest argument, that gatherings differ in duration and risk and officials need latitude in an emergency, is fair but answered by requiring even-handed lines and putting the burden on the government.
5. The result is a plain rule: religion may not be treated worse than comparable secular activity.

What you can do: read the opinion in Tandon v. Newsom on the Supreme Court's website, which runs only a few pages, and ask your state legislators whether your state's emergency-powers law requires equal treatment of worship.